The President of UKE has imposed a penalty of PLN 5 million on PTK for non-fulfilment of its obligation to obtain the PTK telecommunications network subscribers' or end users' consent to using automated calling systems for the purposes of direct marketing.
On 30 December 2011 the President of UKE imposed a fine of PLN 5 million on Polska Telefonia Komórkowa Centertel Ltd. with headquarters in Warsaw for non-fulfilment of its obligation to obtain the PTK telecommunications network subscribers' or end users' consent to using automated calling systems for the purposes of direct marketing, involving 8 400 934 MSSISDN numbers, and for using in relation to those subscribers or end users automated calling systems for direct marketing purposes, i.e. to send SMS encouraging them to participate in the lottery called "Loteria Orange".
The provision of Article 172 (1) of the Telecommunications Act forbids the use of automated calling systems for direct marketing, unless a subscriber or an end user has given prior consent to do so. A consent given by a subscriber or an end user as required under the law must meet the requirements specified in Article 174 of the Telecommunications Act, i.e. the consent:
1) may not be presumed or implied by a declaration of will of a different content;
2) may be expressed by electronic means provided that it is recorded and confirmed by the user;
3) may be withdrawn at any time, in a simple way and free of charge.
The ban on using automated calling systems for the purposes of direct marketing as stated in Article 172 (1) of the Telecommunications Act implements the provision of Article 13 (1) of the Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (in its wording following the entry into force on 19 December 2010 of the Directive 2009/136/EC of 25 November 2009).
During the investigation the President of UKE found that PTK by sending SMS to subscribers or end users of 8 400 934 MSISDN numbers was encouraging them to participate in a promotion lottery called "Loteria Orange" and did not fulfil its obligation to obtain the subscribers' or end users' consent, as referred to in Article 172 (1) of the Telecommunications Act, granted in the manner specified in Article 174 (1) of the Telecommunications Act.
The President of UKE while imposing a financial penalty on PTK took account of the fact that the breaches found have resulted directly in decreased level of protection with regard to the subscribers' and end users' rights governing their relations with telecommunications undertakings. The activities of PTK consisting in the usage of automated calling systems without the subscribers' or end users' prior consent caused intervention in their privacy by forcing them to receive unsolicited messages for the purposes of direct marketing with regard to the lottery in question. It is impossible to evaluate the extent to which the messages caused nuisance to their recipients. Moreover, it is hard to neglect the fact that more far-reaching consequences of sending the above messages involved in some cases unintended participation in the lottery and incurring significant costs due to this fact. The situation that emerged in consequence of the breaches found should be evaluated as a significant breach to the subscribers' and end users' rights, given that it affected as many as 8 400 934 subscribers or end users of PTK.
In such situations the Telecommunications Act provides for the issuance of a decision imposing a financial penalty of up to 3 per cent of the undertaking's annual revenue as a maximum amount.
The President of UKE would like to stress that the amount of the penalty takes account of the fact that the company had been fined before for breaches to information obligations towards end users.